New Orleans & N. E. R. v. Thomas

McCORMICK, Circuit Judge. The defendant in error, a citizen of Alabama, brought this action in the circuit court for the eastern district of Louisiana against the plaintiffs in error, corporations created under the laws of Louisiana, claiming damages for personal injuries alleged to have been inflicted on him by their negligence. He charged that he had-, shipped two car loads of cattle from Epes, Ala., to New Orleans, over the Alabama & Great Southern Railroad and its connecting lines, under what is known as a “live-stock contract;” that by the terms of Ms ‘contract he was required to load, unload, feed, water, and take all proper care of said stock, and for that purpose he' traveled on the same train with the stock from Epes to New Orleans, over the lines of the Alabama & Great Southern Railroad, the New Orleans & Northeastern Railroad Company, and the New.Orleans & Southern Railroad Company; that the cars containing his cattle were transferred from the New Orleans & Northeastern Railroad Company to the New Orleans & Southern Railroad Company for the purpose of transporting them to the slaughterhouse, the point -of destination in New Orleans; that while moving on the track of the New Orleans & Southern Railroad Company, and at a point where that track is crossed at right angles by the track of the New Orleans & Northeastern Railroad Company, a locomotive of the latter company ran into the cars containing his cattle, and on which he was riding, derailed said cars, and severely injured him; that said collision resulted from the gross negligence of the employes of the plaintiffs in error. The New Orleans & Northeastern Railroad Company, besides the general issue, avers that its contract for carriage terminated at the point where the transfer of the cars was made to the track of its coplaintiff in error; that under the contract between plaintiffs in error to convey said cars from New Orleans to the slaughterhouse the defendant was not required to load, unload, feed, water, and care for said stock, and was not required to travel with his cattle that short distance, but should have taken a street car, which is the usual method of conveyance employed to reach the slaughterhouse; that no provision had been [381] made by the New Orleans & Southern Kailroad Company for the transportation of passengers, cattle owners, or others from New Orleans to the slaughterhouse; and that defendant in error was guilty of contributory negligence in riding on the cattle cars in question. The New Orleans & Southern Kailroad Company, besides the general issue, denies that it had any contract with the defendant in error, and avers that under a contract between it and the New Orleans & Northeastern Kailroad Company it did switch certain car loads of cattle a distance of only one or two miles from the junction of its track with'that of its coplaintilf in error to the slaughterhouse; that the defendant in error was not required to travel with said cattle, and had no right to do so, in or about said cattle cars; that it had made no provision for the transportation of the defendant in error in or about said cattle cars; and that he, in riding on said cars, acted in direct violation of the rules of this company, and was guilty of gross contributory negligence, which contributory negligence it specially pleads as a defense to the action. There was a verdict and judgment against the plaintiffs in error, to review which this writ of error was sued out. There are 13 assignments of error, 12 of which rest on bills of exception taken to the refusal of requested charges, the modification of requested charges given, and to certain portions of the general charge of the trial judge to the jury. These bills of exception cover 75 pages of the printed record. The first of these.bills of exception, and the basis of the first assignment of error, purports to embrace all the evidence admitted on the trial, and on which the plaintiffs in ei*ror asked the trial court to instruct the jury peremptorily to find a verdict for the defendants (below, plaintiffs in error), on the ground that on the facts disclosed by the evidence there was nothing left in the case but questions of law, and that it appeared from the facts as a matter of law that the plaintiff (below, defendant in error) was guilty of contributory negligence, and could not recover. This the trial court refused, and the plaintiffs in error now urge that the circuit court erred in refusing to take this case; from the jury. It can hardly escape observation that, in the judgment of the very able counsel who generally represent parties of the class of these plaintiffs in error, the error here complained of is one into which the judges of the circuit court often fall. The second bill of exceptions refers to the facts shown in the first bill, makes a fair argumentative statement of what the evidence tended to prove on the basis of which plaintiffs in error asked a charge which the court gave, with this addition: “But if ilie jury find that the defendants, by their conduct, had hold out their employes to the plaintiff as authorized to consent to his bring carried on the train with his cattle,- and such employes consented, then there will be a- consent of the corporation.” The plaintiffs in error urge that the circuit court erred in thus modifying their requested charge. The bills of exception from 3 to 12, inclusive, each refer to the facts as shown in bills numbered 1 and 2, and the point of all and of each is that the trial judge erred in not instructing the jury as [382] matter of law that the defendant in error was guilty of contributory negligence, and could not recover. We are constrained to hold that the provision of our constitution,' which gives parties to an action at law the right to a trial by jury, embraces even parties who bring actions at law against railroad corporations, and that the persistent effort to push precedents to the point of requiring trial judges to decide as questions of law the issues most commonly joined in cases where recovery for personal injuries is sought should not be encouraged. The varying language of the swelling current of reported opinions, which already deluges the assizes, can be so collected and directed against almost any conditions of proof possible in such cases, as to convert the questions as to what is negligence and what is contributory negligence into issues of law instead of fact; while, in our view, the authority of adjudged cases is that whether there was negligence on the one part or. contributory negligence on the other is a question of fact, to be determined by the jury under proper instructions. It is, of course, elementary that whether there is any evidence is a question of law. But we must beware that in applying this rule we do not substitute the judgment of the judge that there is not sufficient evidence for his judgment that there is no evidence. In this case the trial court was not even asked to charge the jury that there was no evidence to charge plaintiffs in error with negligence, but, on an issue on which they had the burden of proof, the trial judge was asked to charge as matter of law that they had made out their case. We do not feel called on to review the evidence in this case, as we would on an appeal from a decree :in equity, and deem it only necessary to say that, in our view, the proof in this case justified the trial judge in refusing to take the whole case away from the jury, and in modifying the requested charges that he gave, and in refusing those he refused. And that the part of the general charge excepted to presents no error for which the case should be reversed. The following cases support this opinion: Railroad Co. v. Powers, 149 U. S. 43, 13 Sup. Ct. 748; Railroad Co. v. Converse, 139 U. S. 469, 11 Sup. Ct. 569; Railroad Co. v. McDade, 135 U. S. 554, 10 Sup. Ct. 1044, and cases therein cited; Railroad Co. v. Stout, 17 Wall. 657; Railroad Co. v. Harmon’s Adm’r, 147 U. S. 571, 13 Sup. Ct. 557; Kane v. Railway Co., 128 U. S. 91, 9 Sup. Ct. 16; Aerkfetz v. Humphreys, 145 U. S. 418, 12 Sup. Ct. 835; Railroad Co. v. Horst, 93 U. S. 291; Railway Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679; Eddy v. Wallace, 1 C. C. A. 435, 49 Fed. 801. The judgment of the circuit court is affirmed.